“Flu with your Fries” Due to Paid Sick Leave Waivers

Help me understand. Why would PSL legislation allow unions and employers to agree to waive all of the law’s paid sick leave benefits for bargaining unit employees?

Take the recently enacted Berkeley, CA ordinance. The “Purpose” provision recites the self-evident observation that “[s]ick workers may infect their coworkers and members of the public in the workplace, on public transit, and in between.” Service workers especially, without paid sick time, deliver “flu with your fries,” proponents argue metaphorically.

Yet, just two sections later, the Berkeley ordinance gives unions and employers the right to take away from employees what the ordinance giveth. Unions and employers can waive “all or any portion” of the ordinance’s requirements for bargaining unit employees so long as the waiver is in “clear and unambiguous terms.” The effect of this language is quite clear and unambiguous. A law intended to stop employees from delivering “flu with your fries” can require employees to continue to do so. Bargaining unit employees could still be required to make that painful choice between their health and their job.

Berkeley is not alone. Most of the NJ cities, Seattle, Tacoma, Oakland and more also allow an employer and union to agree that bargaining unit employees will not receive some or all of the paid sick time the ordinances “require.” While the recitations in most of these ordinances cite the platitude about the importance of paid sick time to allow employees to attend to their own health care and those of family members, the legislators then blithely ignore that platitude by adding the waiver provision.

A few jurisdictions take a middle road. For example, in New York City, employers and unions in the construction and grocery industries can waive the Earned Sick Time Act’s requirements, but those requirements can be waived in other industries only if the labor agreement “provides for a comparable benefit,” which may include “leave, compensation, other employee benefits, or some combination thereof.” In other words, benefits comparable to paid sick time may not include time off for being sick.

I don’t get it. And I would not accept the suggestion that all employers and unions will act altruistically, in the best interests of employees. I have negotiated too many labor contracts to accept that. While Bismarck said that sausage and law are two things you never want to see made, labor contracts are a close third.